The writer is a partner at Rana Ijaz & Partners, a Lahore-based law firm, and a graduate of Columbia University School of Law
[email protected]

The murder of two Pakistanis by the American man identified as Raymond Davis has riled many Pakistanis. Besides fanning the anti-American sentiment, it has also perplexed Pakistanis because of the rather mysterious manner in which the whole incident played out. From a legal standpoint, solving the mystery of the American’s identity is the most critical part of the ongoing investigation, since it would determine whether or not he has diplomatic immunity from criminal prosecution in Pakistan.

There are some indications that Raymond Davis is not a diplomat. However, irrespective of his identity or legal status, the relevant question is whether Raymond Davis should be allowed to get away with murder? This question ties in with the larger issue of how the principle of diplomatic immunity could be abused under certain circumstances.

By way of background, the foundation for this principle was laid down in the Vienna Convention on Diplomatic Relations, 1961, which is considered the most important international agreement on diplomatic immunity. The relevant part of Article 31 of this Convention sets out the immunity of a diplomatic agent from the criminal jurisdiction of the country in which the diplomatic agent is working. A diplomatic agent has been defined in Article 1 of the convention as the head of the mission or a member of the diplomatic staff of the mission which includes administrative, technical and service staff of the mission. Therefore, strictly in accordance with the Vienna Convention, if Raymond Davis’s identity as a diplomatic agent is established, he should be let off the hook.

While this law may seem discriminatory and abhorrent, especially in this particular case, at the state level, it is quite fair and uniform in its application to diplomats. In fact, in the area of diplomatic relations, it has its roots in the principles of goodwill and reciprocity. The US itself is no exception in generously granting diplomatic immunity even in some cases involving serious offences. In one case, the son of a military attaché from Ghana who was suspected of committing 15 rapes was allowed to leave the US without being prosecuted on the grounds of diplomatic immunity.

So why is the principle of diplomatic immunity so widely recognised and enforced? One of the rationales for granting diplomats this privilege is their lack of understanding of the local customs. If this is the case, what is the basis for granting immunity from criminal prosecution? It should be easy to understand that regardless of what state the diplomat is working in, rape and murder are not part of its local customs.

Under the Vienna Convention, the only way a diplomat could be prosecuted for a crime is if his own state expressly waives the immunity. Yet, it could be charactericed as an irrelevant provision that would hardly be enforced regardless of how heinous the offence is. In the case of Raymond Davis, the US government has already raised the issue of diplomatic immunity. Assuming Raymond Davis is a diplomat, the demand is legal. Moreover, I cannot think of many states that would waive this immunity to enable prosecution of its diplomats in a foreign country.

Clearly, the principle of sweeping diplomatic immunity needs to be revisited. Like any law, the benefits of the law should be balanced against the costs. Under prevailing principles of international law, the benefits of sweeping diplomatic immunity seem to outweigh the costs, including the costs of not prosecuting diplomats and their family members for rape and murder.

Reader Comments (48)

The US probably realizes that in the court of public opinion Raymond Davis is already guilty. Even if the evidence presented clears him of any wrong doing by a Pakistani court, that will be seen as acquiescing to US demands. In such a situation, whether he is guilty or not is irrelevant as the US has lost the battle for public perception, so might as well play the diplomatic immunity card and get him out of the country. Recommend

@Nasir. What do you think..is the US ‘realization’ right or wrong? Let me hold the ear from the other end, aren’t you a bit ‘over judgemental’ about Pakistan’s public perception.Will you agree that so far no irresponsible statement has come from any Pakistani official? Let things take their course.Recommend

“Before the US govt. has the audacity to ask for an immediate release of their so call diplomat, let us get some facts straight ;
1. Mr. Davis was driving a vehicle with non-diplomatice plates (fake civilians plates)
2. He was carrying firearms unlawfully (diplomatic staff cannot carry arms)
3. the two alleged robbers were shot multiple times (all in the back), how can that be self defence.
4. Took pictures of the victims.
5. After not being able to make his escape, he radioed for a rescue vehicle.
6. The rescue vehicle travelling wrong way at high speeds killed and seriously injured (a innocent woman).
7. Mr Davis was a “security consultant” and by any stretch of imagination is not entitled to diplomatic immunity and I assume that among the 3,000 or so US security contractors illegally operating in Pakistan and responsible for most of the mayhems seen in the recent past. Without doubt, any such act by any foreign country’s embassy staff in US would certainly raise hell” !Recommend

This simply implies that any one categorized as diplomat, carrying a diplomatic passport is free to commit any crime in their country of posting. Whether he murders two people or two hundred, carries out a terrorist attack or anything of that kind, he enjoys immunity from prosecution in the country of crime. At the same time, he can not be prosecuted in his own country since the crime took place out of the jurisdiction of the court of that country. That means, all the diplomatic staff all over the world are allowed to commit any criminal activity of any degree of heinousness and walk out free.
The level of immunity provided by Vienna Convention must be redefined. Otherwise, this is going to set an extremely dangerous precedence for the whole world. Recommend

if the American did have diplomatic immunity ,then the govt. will be forced to abide the geneva agreement, but as far as i know thier was three person who were killed in this incidence. the americans should also wait for the results of police investigations. as if the man is trully guilty, and is released the public sentiments would be against america.Recommend

To all those who have said that Americans somehow always get a free pass when it comes to any lawbreaking, you are entirely mistaken. There are many Americans being held abroad in jails in several countries for breaking the law of the respective country, and once they serve they will be released.

Americans don’t get a free pass. With regards to diplomatic immunity, Pakistani diplomats get the same treatment, they are immune but that doesn’t mean there respective country will not punish him or her.Recommend

What about the rights of heirs of the victims under Islamic Law such as Qisas and Diyat. The constitution of Pakistan clearly stipulates that no law can be in derogation to Islamic principles. Further, according to Article 46 of the Vienna Convention on the Law of Treaties any provision of an international treaty which conflicts with a rule of fundamental importance may not be implemented by a country party to the treaty. Recommend

Is it possible to craft the diplomatic identity overnight? Initially there was some news that this person is on a visit visa to Pakistan. If this is the case can Pakistan not find out if his diplomatic papers were submitted before-hand? Recommend

Afia siddiqui group has found a chance for a swap. pakistan will be a loser if it agrees. Reymond killed 3 pakistanis. Afia’s group and mentors have killed thousands of Pkistanis in suicidal attacks. Justice for the 3 killed, justice for the american who shot them but NO to return of a terroristRecommend

If diplomatic immunity covers murder then why didn’t a US diplomat just walk in shoot Saddam and claim immunity ? They need not have gone through the trouble of invading Iraq.
After reading your article I realised you must be a good lawyer because you end up saying nothing.Recommend

Actually not true. The Vienna convention does not allow diplomats to carry weapons. Secondly ABC has announced in the US that Davis is in fact a contractor for a Security firm not unlike Xe. He is not diplomatic staff under the Vienna Convention. For a host of reasons the first one being he was not presented as such to the Pakistani government. Whenever a diplomat joins a mission he presents his credentials to the State Department or in this case MOFA to state that he is in fact a diplomat.

Lastly US courts have stated categorically that US military contractors are not allocated diplomatic immunity.Recommend

The mere US suggestion that a murderer be released without trial or conviction simply by merit of being an American is not just incredibly outrageous, its downright disgusting! After acquiring a self-acclaimed position of being the biggest upholders of human rights on the globe, USA shows its true colours
Mirror Mirror on the wall
Who’s the nastiest of them all?Recommend

may be the american is telling the truth.one of the boy had snatched mobile.suppose one of us is confronted with the the dacoits on the road what will be the immediate reaction, natrually defend urself and that what the american did.Recommend

“A diplomatic agent has been defined in Article 1 of the convention as the head of the mission or a member of the diplomatic staff of the mission which includes administrative, technical and service staff of the mission. Therefore, strictly in accordance with the Vienna Convention, if Raymond Davis’s identity as a diplomatic agent is established, he should be let off the hook.”

That is a wrong reading of the convention.

The Vienna Convention states:

A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the
mission

The “members of the diplomatic staff” are the members of the staff of the mission having
diplomatic rank

The “members of the staff of the mission” are the members of the diplomatic staff, of the
administrative and technical staff and of the service staff of the mission.

In other words only heads of missions and those with diplomatic rank are accorded status of diplomatic agent and hence immunity under 31. Administrative, technical, and service staff are not accorded status of Diplomatic Agent, and hence have no protection. So if Raymond was a technical advisor without any diplomatic rank, he is not protected by the Convention.Recommend

His identity is fake. There’s no story in his hometown newspaper about “Local Man Accused of Homicide in Pakistan”, and in the USA his hometown newspaper would DEFINITELY be on the Internet. A fake man cannot have diplomatic immunity, because he has entered the country using forged documents.Recommend

The definition of “members of the staff of the mission” specifically refers to and includes “members of the diplomatic staff”. Accordingly, members of the staff of the mission including the administrative, technical and service staff of the mission are members of the diplomatic staff having diplomatic rank and diplomatic immunity under Article 31 of the Convention.Recommend

The definition of “members of the staff of the mission” specifically refers to and includes “members of the diplomatic staff”. Accordingly, members of the staff of the mission including the administrative, technical and service staff of the mission are members of the diplomatic staff having diplomatic rank and diplomatic immunity under Article 31 of the Convention.Recommend

@Karachi Feminist:
Thankyou for this info. I was just wondering where l could get more details of the immunity status and particulars. I think for the benefit of readers who are not aware of the minute details of this law, EP could publish the actual document related to this specific clause.Recommend

@El-Edroos
Why doesn’t the US waive their demand for diplomatic immunity, declare Raymond a private contractor and let the people of Pakistan know that the US will fully respect and adhere to their laws and the judgment of the judiciary. Wouldn’t that go a long way in thwarting anti US sentiment, at least as far as this issue is concerned. But you know that will not happen, you just can’t help yourself from looking at every issue from the US’s point of view, can you? The simple fact of the matter is that no one will value Pakistan or Pakistanis unless they value themselves, and no matter what the outcome of this episode may be, the least we can do is express our indignation at this flagrant trespass against our laws. If the US is successful in saving Raymond Davis because of diplomatic laws or whatever other reason, so be it, at least we shall condemn this entire episode. They don’t need you to make excuses for them or explain their position, the Pakistanis do, or do you not know the difference?Recommend

You are having trouble with simple statutory construction, Sir. Please read it carefully. I have been an attorney since 1999, in California and Massachusetts and currently teach law in Pakistan. I will break it down for you:

The “members of the staff of the mission” are the members of the diplomatic staff, of the
administrative and technical staff and of the service staff of the mission.

This means: members of the staff of the mission are of FOUR types:

diplomatic staff
administrative staff
technical staff
service staff

Article 31 immunity extends to two types: heads of missions (like ambassadors) and people of diplomatic ranking, i.e., diplomatic staff, and NOT admin, service, and technical staff. Mr. Raymond was a private employee, and a technical consultant to the Lahore Consulate and is not protected by the Convention.

Pakistani law mirrors the Vienna Convention, and in 1972 our parliament adopted it.Recommend

Q: Irresp­ective of his identi­ty or legal status, the questi­on is whethe­r he should be allowe­d to get away with murder?

Ans: The answer lies in the question itself. I feel there are two elements in the above statement.
1. you cannot probe into the matter unless you have complete information about Davis’ identity. His legal status/identity is the only yardstick to decide the case in his favour or the other way round.

Davis committed murder. correct. but international law uplift diplomatic immunity to the Diplomats. so no shred of doubt as to sentence for murderer (given he is truly diplomat)

Suggestions:

Pak. Foreign Office is the major culprit in this case. its the Foreign Office which should have the documents of the Davis as record. I can’t understand the fact why Pakistani Govt. is asking USA Govt. to provide the documents of identity of Mr. Davis?? why not Pak. Govt. verifying the data of Davis from its own record.it can be done by checking the file of Davis against which he was issued Visa. those documents can easily reveal the fact about the identity of Davis.(whether a pvt American or Diplomat)

……But in given circumstances, I strongly believe that Pakistani govt will never show milk to bring that file on record…..

If Davis is proved a diplomat, then Pakistani Govt should prepare herself for the grave consequences under International Law for detaining illegally a diplomat.
Again, a major point which today we are forgetting is that Davis can be given immunity in Pakistan under international law but he has to be tried for murder in USA. this immunity is given just in recipient state and not in parent state. once it is proved that Davis is diplomat, we have to hand him over to USA and request USA to initiate a fair trial in USA against him.( which is not likely to start)Recommend

It appears that you have complicated this fairly simple and straightforward issue.
Let me try to explain this one more time: You are right to the extent that Article 31 applies to diplomatic agents, that is, heads of missions and officials having a diplomatic rank. However, your assertion that Article 31 only applies to diplomatic staff and not to administrative, technical and service staff is incorrect. I substantiate my argument by referring to Article 37 of the Convention as well which clearly states that members of the technical staff also enjoy the privileges and immunities, including immunity from criminal prosecution, provided under the relevant Articles of the Convention including Article 31.

By the way, I practiced law in New York for about 5 years. Currently, in addition to practicing law in Lahore, I am also teaching law. Thought it might be relevant since you had also mentioned your professional experience.Recommend

yes, my point was that your initial reading of article 31 definition of diplomatic agent was misconstrued in that it does not include administrative, technical, and service staff. you now see that! Article 37 immunity extends to admin, technical, and service staff a you correctly point out but is of a more qualified nature than article 31. no immunity for civil actions arising outside official duties.

anyways, all his legal mumbo changes the case you make for R Davis.Recommend

Thankyou. Will read all detail myself now.Though l must confess l am getting more and more confused as time goes on and we are forced to listen to yet another view, yet another angle, yet another discovery. And the verbal war between our two esteemed readers doesn’t make it any better.Recommend

As far as i have seen news and articles round the globe, Raymond Davis is US national. Now a Pakistani national cant think like US national, and if he is US national then US will defend him at every cost,weather it is diplomatic relation or any thing with the name Vienna Convention. Above all a diplomat cant be sharp shooter like Davis was on 28th January 2011. Can any one ask why he was there?
Every one know the current situation of Pakistan, and in-spite of all that Davis presence in area where US Embassy would probably not allowed her citizen to let in there, arises a question mark???Recommend

I think a major factor, fact, that is omitted in the otherwise well written article is that the two men who tried to hold up Mr. Davis are identified as having robber two Pakistani men a short while before they tried to rob Mr. Davis. Further, the Lahore police are quoted as sayinig that one of the two had a record of three or four other robberies and that the younger of the two was his “accomplice.”

As both robbers were found factually to be armed, each had a pistol, and as each had two cell phones each, one each being the cell phones stolen earlier the same day together with cash from the two Paksitani gentlemen nearby where the failed stick up of Mr. Davis occurred…it is only fair and in fact a legal requirement that the fact Mr. Davis faced attempted armed robbery by identifiable to Lahore police known crooks, that Mr. Davis not only defended himself but was the victum of a criminal armed action against his person.Recommend

I omitted that fact that the issue of Mr. Davis having Diplomatic Immunity is the first focused issue, which eliminiates digressions into criminal details…but if one wants to spend time on criminal details then his being subjected to attempted armed robbery and having to defend his life and limb is a fact of record, too. Litigation details can be handled separately once Mr. Davis is given diplomatic immunity and allowed to be removed from Pakistan by the US Department of State.

Too, Diplomatic Immunity under a Diplomatic US Passport is for the US Dept, if State to state the facts on,which the US Ambassador to Pakistan as endorsed by the US Dept. of State in Washington has already done…is not subject to writers on this site abstract seat of the pants opinions which opinions ignore the facts of International Diplomatic Law and associated Treaties as factually cited by the US in his matter of attempted robbery and self defense.Recommend

“However, what can be stated at present with some certainty is the position in law about the status, rights and privileges of a foreigner legally living in Pakistan. According to the Diplomatic and Consular Privileges Act IX of 1972 of Pakistan, which has incorporated and enforced ‘The Vienna Convention on Diplomatic Relations 1961’ and ‘The Vienna Convention on Consular Relations 1963’, and as held in the judgment of the Sindh High Court in the case of Mrs ZA Qadir Vs Union of Soviet Socialist Republic PLD 1981 Kar-715, to successfully claim diplomatic immunity, two preconditions must be satisfied: Firstly a ‘diplomatic agent ought to be a member of the diplomatic staff’ and secondly it ought to be established that, proceedings initiated against him relates to his functions and duties as a diplomatic agent.

Surely to kill Pakistani citizens cannot be included in the official functions of a genuine diplomat, by any stretch of logic or law. I am very doubtful if Raymond Davis, or whatever is his real name, would succeed in satisfying any of the said two conditions.”Recommend

“Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States,” Mr Raymond Davis (or what ever his name is) was not performing any official function

And

Article 43 Immunity from jurisdiction
1.Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

So at least the accidental death of third person in accountable and the US Embassy is hiding the culprits. This can also be interpreted that their is no immunity in civil mattersRecommend

Unfortunately the journalist has mentioned the case of rape committed by the son of diplomat from Ghana, but has forgot to refer here the Georgian Diplomat who killed a woman in a car accident, and he was not given the immunity but 21 years of jail. Similarly the Libyan diplomatic official in London was punished for killing a woman, and the Libyan embassy was shut down for 15 years. Also the American Diplomat was not allowed to enjoy immunity in Georgia and was jailed for10 years. If Vienna convention give the immunity around the world, then why the above were not given the immunity! We should ask the USA to list all the cases in which they have given the immunity to the diplomats, as in current scenario it seems that it is the decision of the Govt. whether they accept to give the immunity…

In any case irrespective of giving or not giving the immunity to R. Davis, the court and the govt of pakistan must reveal that who actually Raymond is? what he was doing in Mozang, why he was carrying such weapons, and other belongings such as wireless, satellite phones, etc. It is the serious matter for country security since there have been a lot discussion in the media about the blackwaters activities.

Why are all the Pakistanis posting here conveniently neglecting the possibility that the two guys killed were committing armed robbery and had criminal records? That they allegedly committed a robbery against a Pakistani citizen a short while before they confronted Davis? That Karachi is a dangerous place these days, even for its locals, Are you so biased by your indoctrination that you cannot see both sides of an issue? From what I know Americans (individually) are not so crazy and lawless, while Pakistan has got a fait share of criminal, violent and armed people. So what Raymod is saying might have been true too. Wake up to that possibility, And to somebody who tells me that in that case Raymod Davis should wait and prove his innocense in the Pakistani courts, I have nothing to say. Me in my sane mind, if I were in his place, would look to get out of that mad fanatical place at the earliest.Recommend

everyone here is looking raymond case on different angles, everyone is free to give his opinion, everyone here loves pakistan…………….let us suppose the 2 boys killed were robbers, and they want to stop an American for dollars. but……….can America answer these questions that…!

1) why an American embassy official in private car with no embassy plates was there.
2) why he was given a full back cover with high speed jeep.
3) why he was holding GPS, Maps, Digital cam, compasses etc in his car.
4) why he was fully loaded with illegal weapon.
5) why he took pictures after killing the boys.
and many questions which are waiting in minds of pakistanis.

if i say, that Raymond Davis tried to hire these boys on payment for terrorist activities and due to some mistakes in process they chase him and tried to clear the issue……. what would be the answer ?
as police recovered Mobiles and foreign currency which may be given them in bargain. he killed one boy from inside of his car and other injured was killed when he chased him or from out of his car. (people present on crime scene reported this) he tried to remove the witness of his failed bargain. he was given a GPS with tracks to locate his target because he might be newer to that area. his GPS should also be checked to have already saved coordinates.
all this is not enough but more to have clear decision.Recommend

Raymond Davis is not a diplomat because under the statute of vienna convention on diplomatic relations 1961 articles 10, 13, 17 and 19, the Ministry of Foreign Affairs has to be notified of a diplomat’s arrival n his precedence in the receiving state. Qureshi’s statement of Davis as not being notified by the Foreign Ministry as a diplomat makes it clear that he isnt a diplomate. What’s the point of holding up arguments with US regarding his immunity blanket once he isnt a diplomat at all??!!Recommend